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- Unreported Judgment
R v CLN QDC 111
DISTRICT COURT OF QUEENSLAND
R v CLN  QDC 111
511 of 2016
District Court, Brisbane
12 May 2016 (delivered ex tempore)
12 May 2016
S J Hedge for the Crown
C Reid for the Defendant
Office of Director of Public Prosecutions for the Crown
Wallace Davies Solicitors for the Defendant
- HIS HONOUR: In this case I was required to make a preliminary ruling concerning recent legislative amendments. I made my ruling and indicated that I would give brief reasons today if possible, and these are indeed those reasons.
- The defendant in this case pleaded guilty to one count of rape and three counts of assault occasioning bodily harm in circumstances where all of the offences were deemed to be domestic violence offences. Those offences were committed on 17 October 2015. On 5 May 2016, the Criminal Law (Domestic Violence) Amendment Act 2016 was passed. Section 5 of that Act amended section 9 of the Penalties and Sentences Act 1992 relevantly by inserting a new subsection 10A which provided:
In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor unless the court considers it is not reasonable because of the exceptional circumstances of the case.
- The Domestic Violence Amendment Act does not contain any transitional provisions that stated that the amendment was to act retrospectively. At the sentence before me today, the defendant contended that section 9 subsection (10A) did not operate retrospectively and the Crown submitted to the contrary. The issue then came down to deciding whether, in reality, the amendment was one of a procedural nature or whether it went to substantive matters affecting the rights and obligations of the defendant. If it was the former, it might well have a retrospective effect. If it is the latter, then the defendant would be sentenced under the regime that existed at the time.
- Coincidentally, Judge Moynihan, in the matter of R v BNQ, handed down reasons today dealing with the same matter. I have had the opportunity to read his reasons and can indicate that I agree, not only with his conclusion, which was the same as mine, but I also agree with his reasoning. His Honour has informed me that he intends to publish those reasons on the court website and, in those circumstances I consider it is only necessary for me to make some further brief comments.
- Reliance on the part of the defence was placed on a passage of the Court of Appeal decision of R v Breeze  QCA 303, where, in paragraphs 9 and 10, it was said in part:
The decision in Truong was contrary to the decision in Mallard and White (CA numbers 450, 452 of 1997, 17 April 1998). Truong should in our opinion be followed rather than Mallard and White, since in the earlier case the point was said to have been “effectively” conceded and received only brief discussion.
The court gave as one of the reasons for its conclusion in Truong that the factors prescribed in section 9 of the Penalties and Sentences are procedural. It is not, with respect, evident that laws relating to the matters taken into account in determining the level of sentence are other than substantive; for example, if the Parliament decreed that no or little discount should be given to a plea of guilty or for cooperation with the police, that would be a change in the substantive law.
- That reasoning would tend to suggest that amendments of the type involved here are substantive as they introduce a circumstance of aggravation which did not previously exist and make it mandatory to take into account, save for exceptional circumstances. Such a circumstance of aggravation, depending on the case, may of course lead to the imposition of a harsher sentence that might have been imposed had that circumstance of aggravation not been present. Indeed, that would have seemed to be the philosophical reasoning behind the introduction of the amendment. I was referred to the explanatory notes which referred to the introduction of the amendment, and it was said at page 2 of the explanatory notes:
An aggravating factor increases the culpability of an offender, which means that the offender would receive a higher sentence within the existing sentencing range up to maximum penalty of the offence.
- I will return briefly to those explanatory notes in a moment. Following Breeze, the Court of Appeal had reason to comment on that case in R v Carlton  QCA 241. In Carlton, the court was concerned with amendments to section 9 of the Penalties and Sentences Act 1992. The amendments being the introduction of subsections 6A and 6B. 6A prescribed that the principles enshrined in subsection 2(a) did not apply to the sentencing of offender being sentenced for a sexual offence involving a child. Subsection 2(a) of section 9 prescribed that one of the principles that had to be taken into account was that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community was preferable.
- That, of course, was a significant change indeed requiring, as it did, sexual offenders not to be given the benefit of the presumption of a sentence of imprisonment being one of last resort save for in exceptional circumstances. At paragraphs 87 and 88, Justice of Appeal Chesterman with whom Justice Mullins agreed, had this to say:
It is, I think, regrettable that in defending the authority of Mason the judgment in Breeze should have criticised the reasoning in Truong. It was not necessary but because Truong is the relevant authority for this application the criticism must be addressed.
The point made was that “laws relating to matters taken into account in determining the level of sentence are … substantive,” or arguably so. This is to suggest that a change to section 9 is a change of substantive law. I respectively disagree and would follow and endorse the categorisation given in Truong: the changes to procedure. What the section does is to identify factors (but not all factors) to which a court must have regard when imposing a sentence. The actual imposition of a sentence is an exercise of discretion. Section 9 seeks to regulate the manner in which the discretion is to be exercised by an identification and weighing of factors to be taken into account and balanced out. A change to the factors, or a re-ordering of their priorities is not, in my opinion, properly described as changing a substantive law. It affects only the manner in which judges go about exercising the discretionary power of sentencing. To add to or subtract from the list of factors to be considered, even the removal of a factor normally regarded as important as a plea of guilty, would not, in my opinion, effect an alteration to the substantive law of sentencing.
- Also in 2009, in R v Pham (2009) 197 ACrimR 246, Keane JA, as he then was, said:
Sections 9(6A) and section 9(6B) of the PSA are concerned, as were the provisions which they amended, including section 9(2)(a) to lay down the principles to be applied by the court in sentencing an offender. These provisions inform the exercise the sentencing discretion. They are not concerned to authorise the imposition on an offender of punishment to any particular extent, much less “to any greater extent than was authorised by the former law.”
- More recently, the Court of Appeal, the case of R v Koster  QCA 302, was concerned with circumstances which were described in these terms:
The real question is whether the learned sentencing judge erred in his approach to requiring the applicant to serve actual imprisonment.
- His Honour went on to say:
It is apparent from that passage that the learned sentencing judge regarded section 9(5)(b) of the Penalties and Sentences Act 1992 (Qld) as applicable. The provision reads:
(5)Also in sentencing an offender for any offences of a sexual nature committed in relation to a child under 16 –
(b)the offender must serve an actual term on imprisonment unless there are exceptional circumstances.
- Holmes JA, as she then was, at paragraph 38, said:
The insertion of a section 9(5)(b) in the Penalties and Sentences Act in 2010 was not accompanied by any provision making it retrospective. (Nor did the explanatory notes to the Penalties and Sentences (Sentencing Advisory Council) Amendment Bill 2010 (Qld) contain any suggestion that the section was intended to have retrospective effect.) It is clear that section 9(5)(b), unlike the provisions within Truong, Carlton and Pham, is not merely procedural; it has a substantive effect, making the imposition of actual imprisonment mandatory in the ordinary case. By doing so, it can be said (by logic similar to that in Pierpont) to increase the minimum sentence within the meaning of section 180(1) of the Penalties and Sentences Act; with the result that the increase should be taken to apply only to offences committed after section 9(5)(b) commenced…
- With respect, that reasoning seems sound in that to amend the legislation to introduce in effect a mandatory prison sentence, save for in exceptional circumstances, would be to introduce an amendment which would substantially interfere with the rights and obligations of the offender and, in my view, that could be readily contrasted with the amendments of concern in Carlton and the two cases are not at odds. And, while perhaps Carlton is not technically binding given different legislation is involved, the reasoning, with respect, ought be followed.
- As in Carlton, the amendment here requires a particular matter to be considered as a matter of aggravation. That must be taken into account, but, to adopt the words of Chesterman JA in paragraph 88, what the amendment does is to identify a factor, but not all factors, to which a court must have regard when imposing a sentence. But, nonetheless, the actual imposition of a sentence still remains – or involves the exercise of a discretion.
- For the above reasons, I have determined that the amendments are procedural and apply in the circumstances of this case.
- The only other matter I wanted to comment on was that it was not necessary to have any regard really to the explanatory notes. The amendment clearly speaks for itself. The explanatory notes provide no assistance. The final thing I would note is that in many cases involving serious violence, sexual or otherwise, committed in a domestic situation, it be considered to be an aggravating feature involving, as it does, an assault by an assailant on a victim who would ordinarily trust that assailant not to behave in such a way.
- MR REID: Thank you, your Honour.
- HIS HONOUR: I will adjourn the court.
- Published Case Name:
R v CLN
- Shortened Case Name:
R v CLN
 QDC 111
12 May 2016